TMI Blog2021 (11) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... h), it is evident that there is no legal mandate to bifurcate the elements of a composite contract as to service component and material component and /or land component and thus, in absence of such mandate, the value of a composite contract cannot be disintegrated for the purpose of service tax levy as held by the Hon ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS [ 2015 (8) TMI 749 - SUPREME COURT] - in spite of retrospective amendment in Rule 2 A of the Service Tax (Determination of Value) Rules, 2006, service tax cannot be charged for the services defined under Section 65(105)(zzzh). Revenue is directed to refund the amount of ₹ 3,53,821/- paid through the buil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed refund claim on the ground that levy of service tax on purchase of the property (under construction) was illegal and improper, as the provisions of Finance Act, 1994 read with Rules framed there under, did not provide for any mechanism for valuation to arrive at taxable value of service in a composite transaction, involving divesting of undivided share in land in purchase of an under construction property. The appellant relied on the judgment of the Hon ble High Court, Delhi dated 03.06.2016 in Writ Petition (C) No.2235/2011 and Writ Petition (C) No.2971/2011 in the matter of Shri Suresh Kumar Bansal and Shri Anuj Goyal Others (hereinafter referred as petitioners ) Vs. Union of India. Appellant accordingly filed its refund claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the case of Suresh Kumar Bansal and Others Vs. Union of India 2016 (43) STR 3 (Delhi) is not applicable as the facts are distinguishable and the judgement is not squarely applicable. It is further observed that Central Government has amended Rule 2 A of Service Tax (Determination of Value) Rules, 2006 vide 2nd Amendment Rules 2012 w.e.f. 6.6.2012. The service tax shall be borne by the buyer, who availed the service provided by M/s. Emaar Limited, appears to be genuine and cannot be refunded. Accordingly, the refund claim was rejected. 5. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals) urging that the Hon ble Delhi High Court had held, directing to examine whether the builder has collected any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within its scope. However, the High Court did not propose to examine that issue, since the entire argument revolved around the scope of taxable service as envisaged in Section 65 (105)(zzzh) of the Finance Act, 1994, and is specific to construction of complex and building. However, the ld. Commissioner (Appeals) relying on the order of the Adjudicating Authority was pleased to reject the appeal. 7. Being aggrieved, this appeal before this Tribunal. 8. Heard both the sides. 9. Levy of service tax on composite contract for purchase of under construction complex, as defined under Section 65(105)(zzzh) of the Finance Act, 1994, was the subject matter of dispute before the Hon ble Delhi High Court. In the case of Suresh Kumar Bansal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovider by the builder to the buyer;] 11. From a plain reading of the Section 65(105)(zzzh), it is evident that there is no legal mandate to bifurcate the elements of a composite contract as to service component and material component and /or land component and thus, in absence of such mandate, the value of a composite contract cannot be disintegrated for the purpose of service tax levy as held by the Hon ble Supreme Court in the case of Commissioner of Central Excise Customs Vs. Larsen and Toubro Limited - 2015 (39) STR 0913 (SC). 12 Accordingly, I hold that in spite of retrospective amendment in Rule 2 A of the Service Tax (Determination of Value) Rules, 2006, service tax cannot be charged for the services defined under Section 65 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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